Furnace v. Giurbino et al
ORDER DENYING Plainitiff's 75 Motion to Amend the Complaint WITHOUT PREJUDICE, signed by Magistrate Judge Dennis L. Beck on 7/22/2013. (Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
GEORGE GIURBINO, et al.,
Case No. 1:11-cv-00012-LJO-DLB PC
ORDER DENYING PLAINTIFF’S
MOTION TO AMEND WITHOUT
Plaintiff Edward Furnace (“Plaintiff”) is a prisoner in the custody of the California
Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action
by filing his complaint on December 17, 2010, in the Sacramento Division of the Eastern District of
California. The action was transferred to this Court on January 4, 2011. This action proceeds on
Plaintiff’s First Amended Complaint, filed August 12, 2011, against (1) Defendant Lopez in his
individual capacity for damages and in his official capacity for injunctive relief for denial of
necessary religious items in violation of the First Amendment; and (2) Defendants in their official
capacity for prospective injunctive relief for violation of the RLUIPA.
On June 20, 2013, Plaintiff filed a Motion for Leave to File a Second Amended Complaint.
Defendants did not file an opposition.
Under Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend the party’s
pleading once as a matter of course at any time before a responsive pleading is served. Otherwise, a
party may amend only by leave of the court or by written consent of the adverse party, and leave
shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). In this case, a responsive
pleading has been served. Therefore, plaintiff may not file a second amended complaint without
leave of court.
“Rule 15(a) is very liberal and leave to amend ‘shall be freely given when justice so
requires.’” AmerisourceBergen Corp. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006)
(quoting Fed. R. Civ. P. 15(a)). However, courts “need not grant leave to amend where the
amendment: (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue
delay in the litigation; or (4) is futile.” Id. The factor of “‘[u]ndue delay by itself . . . is insufficient
to justify denying a motion to amend.’” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d
708, 712,13 (9th Cir. 2001) (quoting Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999)).
Plaintiff’s motion does not set forth the reasons for his request, nor does he address any of
the factors used in the Rule 15(a) analysis. Instead, he simply states that he would like to file an
amended complaint to “clear up defects in the prior pleadings.” Mtn. 2. In reviewing the lodged
proposed Second Amended Complaint, it appears that Plaintiff wants to add claims of conspiracy,
fraud, misappropriation of funds and cruel and unusual punishment under the Eighth Amendment.
Plaintiff’s failure to discuss the factors above makes it impossible for the Court to analyze his
motion. Accordingly, the motion is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
/s/ Dennis L. Beck
July 22, 2013
D C_Si gnat ue EN :
UNITED STATES MAGISTRATE JUDGE
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